Decisions for the Immigration Bill
APPENDIX A: CABINET AGREEMENTS
- This appendix seeks Cabinet agreement to a range of technical policy changes that are required to ensure the Immigration Bill (the Bill) meet the objectives agreed by the Government to:
- ensure New Zealand’s interests are protected and advanced
- ensure compliance with international obligations, and
- establish fair, firm, and fast decision-making [CAB Min (05) 18/7].
- The proposals aim to ensure that the Bill creates an immigration system that is more transparent, easier to use, and more efficient and flexible, while maintaining an appropriate level of fairness.
| It is recommended that Cabinet: | Rationale | Submissions |
|---|---|---|
Part Two: Core provisions and decision making - Key proposals |
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| 1. Agree that the Bill enable dual citizens who do not wish to prove their New Zealand citizenship at the border to hold a visa. | The Bill does not enable citizens to hold visas. However, this would adversely impact on dual citizens. Dual citizens by descent, for example, would be forced to register and provide proof of their New Zealand citizenship, even if they wanted to visit for a short time using their foreign passport.
Note that if a dual citizen were to prove their New Zealand citizenship at a later date, any visa would be cancelled. |
This issue has been identified by the Department of Internal Affairs. |
Part Four: Arrivals and Departures - Key proposals |
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| 2. Agree that operating areas used for the processing of persons arriving in or departing from New Zealand and facilities necessary for ensuring that a non-citizen is placed on the first available craft leaving New Zealand must be provided by port operators without charge to the Department of Labour (the Department) | The Bill provides that port operators provide certain operating areas to the Department free of charge. In light of the Department’s recent experience in negotiating lease agreements and litigation of similar provisions in the Customs and Excise Act 1996, there is a need to clarify which types of operating areas, and which necessary, essential fittings must be provided free of charge. |
NIL |
| 3. Agree that operating areas include essential fittings within these areas, and the ongoing maintenance of these areas. | As above |
NIL |
| 4. Agree that the Bill clearly provide that it is an offence for people to fail to provide biometrics when required at the border. | Biometrics will be used to establish identity at the border; however, the Bill is not clear that it would be an offence not to do so. Note that Citizens will only be required to provide photographic biometric information. |
The Ministry of Justice has signalled that an offence for non-compliance is appropriate. |
| 5. Agree that the penalty applied to the offence for failing to provide biometrics at the border would be the general penalty of up to $5,000. | If Cabinet agrees that it would be an offence not to provide biometrics at the border, the general penalty of $5,000 is appropriate. |
As above |
| 6. Agree that the Bill provide for the collection of biometric information from non-citizens on departure. | The ability to accurately identify non-citizens on departure and match them to their record through the use of biometric information will enhance the integrity of the immigration system and the accuracy of immigration records. The establishment of any biometric system will come into effect by Order in Council. As biometric information is personal information, the system for its collection, storage and use will be developed in compliance with the Privacy Act 1993. |
Submissions generally raised concerns over the use of biometric information. Most considered that its use should be limited and reviewable, and that it should comply with privacy requirements. |
Part Seven: Review and Appeals - Key proposals |
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7. Agree that an exception be made in the Bill to enable an appeal against residence class visa application decisions to be made by the Minister where classified information has been used. |
Generally, there is no right of appeal against a decision of the Minister to decline a residence class visa in the Bill. This includes where classified information is used in making the decision. However, excluding an appeal right in this situation would not allow independent scrutiny by the Tribunal of the veracity and relevance of the classified information. |
Submissions on this clause expressed a concern at the lack of avenues for appeal generally, saying that there should always be an ability to provide checks and balances on the exercise of powers, in particular, where classified information is used. |
8. Agree that the Bill be amended by introducing criteria for granting leave to appeal to the High Court. |
As above |
NIL |
9. Agree that these criteria would broadly be the same as required to seek the leave of the Court of Appeal, in summary, that the matter is of general or public importance or for any other reason ought to be submitted. |
As above |
NIL |
10. Agree that the courts must treat appeals and judicial review proceedings brought by non-citizens here unlawfully or on a temporary basis with priority. |
There can be significant delays in courts. In matters involving those unlawfully or temporarily in New Zealand, delay can have a major effect on outcome as a non-citizen’s circumstances may change during the delay. |
NIL |
11. Agree that the Immigration and Protection Tribunal (the Tribunal) or courts be able to appoint an amicus curiae (or friend of the court), who does not need to be a lawyer, regardless of whether an individual has also appointed a special advocate and that, where dealing with any classified information, the amicus must be security-cleared. |
The courts would generally have the ability to appoint an amicus curiae to assist them in a case, and this should also be possible in an appeal or judicial review involving classified information. The amicus may be of assistance to the Tribunal or court in considering the matter before it. |
NIL |
Part Eight: Compliance and enforcement - Key proposals |
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13. Agree that “endorsements in foreign passports” be included in classes of documents subject to the offences contained in the Bill. |
The Bill provides offences relating to non-citizens who fraudulently produce passports or visas, or who sell or otherwise deal improperly with these documents. It is possible that endorsements that indicate New Zealand citizenship could be misused by non-citizens. |
NIL |
Part Eleven: Miscellaneous - Key proposals |
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14. Agree that the requirements to prove citizenship prior to the issue of an endorsement be contained in regulations. |
Placing the requirements to prove citizenship in regulations will allow them to be scrutinised by Parliament and will also future-proof the Bill by enabling them to be updated. |
NIL |
15. Agree that the Bill provides a mechanism for cancelling an endorsement where a non-citizen is deprived of citizenship. |
As endorsements will be used to indicate citizenship at the border, where a person has been deprived of citizenship, their endorsement should be cancelled. |
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